Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)

Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect of several important aspects of contract law, notably unfairness, mistake, and privity, former equitable approaches were, after 1875, effectively marginalized both by the courts and by the writers of treatises on English contract law.     

English Matrimonial Law on the Eve of Reform (1828–57)

The ecclesiastical courts, which until 1857 administered English matrimonial law, could not dissolve marriages, but they had important powers, including the power to decree a permanent separation, to order payment of alimony, to make an order for restitution of conjugal rights, and to annul a marriage on certain restricted grounds. The work of these courts deserves attention: though the amount of litigation was, by later standards, comparatively small, this is not a reliable indication that the influence of the law was slight; moreover, the ecclesiastical courts often showed considerable sympathy with the interests of women, inclining to some extent in their favour on several important points of law and practice.     

From Car Wash to Bolsonaro: Law and Lawyers in Brazil's Illiberal Turn (2014–2018)

Law and lawyers tend to be seen as either preferential victims of or key counterforces to rising illiberalism. Brazil offers a good testbed for these claims. Brazilian democracy has deteriorated considerably, as epitomized by the election of Jair Bolsonaro in 2018. Yet, since 2014, law and lawyers have become ever more central to Brazil's field of state power. As the anti-corruption initiative Car Wash (Lava Jato) gained momentum, Brazilian judges and prosecutors were celebrated, locally and globally, as champions of transparency, accountability, and ‘the rule of law’. Following a closer look at Car Wash, this article questions such idealization of law and lawyers. Drawing on research on press interviews and statements by Car Wash legal officers, I find that, throughout the case, they produced a ‘political grammar’ that is closer to illiberalism than many would predict. Based on recent developments in the sociology of fields, I argue that the production of these grammars yields societal effects that deserve scholarly and civic attention.     

Emotions in the Early Common Law (c. 1166–1215)

Beyond dealing with wrongdoing and litigation, law has many other functions. It can be designed to make life more predictable, it can facilitate and promote certain actions, it can seek to prevent disputes by laying down rules, and provide routes to solutions other than litigation should disputes arise. All of these can have connections to matters of emotion. Using both lawbooks and records of cases from the Angevin period, the present article begins by looking at issues of land law rather than crime, and at law outside rather than inside court. It then returns to crime and litigation before exploring the significance of the nature of legal records for the relationship between emotion and law. In doing so, it pays attention to emotion in action, to uses of emotionally charged language, to appearances of the vocabulary of emotions, and to the routinized use of words that might at other times or in other contexts have an emotional element. Underlying the analysis is an exploration of the ways in which some aspects of law became more discrete from ordinary social practice and discourse, in this instance through elements of distancing from emotion.     

“Human Habitation or Economic Life of their Own”: The Definition of Features Between History,Technology and the Law

Liverpool Law Review - Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) establishes the regime of geographical features. It distinguishes the island from...     

“Virgins–Widows–Spouses”: On the language of moral distinction as applied to women and men in the Middle Ages

The focus of this paper is on the meaning enshrined in the rhetorical formula “Virgins–Widows–Spouses,” according to which women could expect to receive a 100-, 60-, or 30-fold reward, respectively, in the life hereafter. Initially formulated around 400 A.D., the formula rapidly became an abbreviation for an understanding of society that was used to conceptualize and legitimize religious practices and the political–social order. Although used especially to define a normative standard for women, it was also frequently lauded as a model for men. The idea of widow, applied to men and women, represented the connection between penance and asceticism. Since the 13th century, however, references to virgins, widows, and spouses ceased for the most part to denote a moral standing based on merit regardless of sex and instead came to designate women according to their stage in life. Men, by contrast, were ranked according to their occupations.     

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

Lord Cooke of Thorndon (1926–2006): 51 Years in the Law

This article provides an in‐depth analysis of the landmark ‘cash for query’ judgment of the Constitutional Bench of the Supreme Court of India. The scope of parliamentary privileges in India, as well as in England and America, is examined, particularly with respect to the jurisdiction of the courts. The present position in the law of parliamentary privileges in India was laid down in the case of Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors. The Supreme Court of India has extensively dwelled on the matter and has delivered a judgment, which is by far the most comprehensive decision in this field of law. The author notes in the analysis that the difference between the English and Indian constitutional systems is of crucial significance. The conflicts between the judiciary and parliament in England arose because of the sovereignty of parliament, and the judiciary had to fight for every inch of its jurisdiction in England. The judiciary had to contend with Parliament not only as a legislative body, but also by virtue of being the ‘High Court of Parliament’, as a superior court. Because of these reasons, the case law from British constitutional history does not have strict applicability in India. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within its framework.     

Religion,masculinity and fertility decline: A comparative analysis of Protestant and Catholic culture (Switzerland 1890–1930)

This paper provides the sketch of a new mechanism explaining the delay of Catholic fertility, namely the changing norms of masculinity and fatherhood, through a comparative study of the first fertility transition in Switzerland (1880–1930).Comparative analysis of religious discourse attests to striking differences in norms of respectable masculinity. In the Protestant canton, men were especially targeted and strongly incited to change their sexual behaviour and limit their offspring in order to comply with a new model of the good husband and father. The religious teachings had an impact due to the social position of the persons enouncing the norms, to the efficient diffusion reaching the majority of men, and to the effective sanctioning, as the example of pastoral enquiries demonstrates. In the Catholic canton by contrast, men were not specifically addressed; the religious discourse supported the husband's rights to frequent sexual intercourse and encouraged him to trust Providence to bring up many children, thus sustaining high levels of fertility. The political repression of public discourse on sexuality defeated every attempt of contesting the husband's marital rights and the Catholic doctrine of procreation. Sexual taboos were particularly severe for women and their total ignorance of sexual matters weakened their bargaining power in fertility decisions.In the last part of the paper, using quantitative methods, we tried to demonstrate that these norms and mechanisms did indeed influence men's behaviour in the Protestant sample. For this purpose, we measured comparatively the results of some indicators introduced to capture the impact of the norms of respectable masculinity, regarding men's responsibility in contraception and men's ability to maintain dependent children. We hope thus to strengthen the position of a growing number of scholars who state that historical demographers cannot avoid incorporating gender into their explanations of historical trends of fertility and who foster the bridging of qualitative and quantitative methods.     

Review of Findlay Stark,Culpable Carelessness: Recklessness and Negligence in the Criminal Law

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.     

Survival strategies of widows and their families in early modern Holland,c. 1580–1750

This article analyses the impact of widowhood upon women in early modern urban society in Holland. Widows were able to maintain their households and to minimize the discontinuity with their lives when married. A remarkably egalitarian inheritance and marital property law, access to a broad range of occupations, a privileged status, an extended poor relief system, institutionalised mutual assistance and new forms of financial provisions for widows enabled widows to survive after the loss of an adult male breadwinner. However, legal rights, social provisions and economic opportunities available to women in the Dutch Golden Age and thereafter, could not prevent social polarization after women lost their spouse.     

Industry-Led Standards,Relational Contracts and Good Faith: Are the UK and Australia Setting the Pace in (Construction) Contract Law?

Liverpool Law Review - The law of contract is changing. “Good faith” and “relational contracts” are used by parties more than ever before in commercial disputes. Yet, their...     

Denied their ‘natural nourishment’: religion,causes of death and infant mortality in the Netherlands, 1875–1899

At the end of the nineteenth century, infant mortality rates started to fall rapidly in the Netherlands. Unfortunately, not all regions benefited from this development. High infant death in the Roman Catholic provinces of North-Brabant and Limburg has often been ascribed to a growing reluctance of Catholic mothers to breastfeed their infants after 1870. This was supposedly caused by the combination of a strict, prudish Roman Catholic norm prohibiting women from baring their breasts and a refusal to accept new medical insights into healthy childcare. The food given to weaned children was generally of such poor quality that many infants succumbed to gastrointestinal diseases. Consequently, infant mortality rates caused by water- and food-borne infectious diseases would have been higher amongst weaned babies. By using recently digitised municipal cause-of-death registration statistics, it is possible to see if there are, indeed, indications of a shift in breastfeeding patterns after 1870. First, the authors look at infant deaths from all causes to see whether Roman Catholic municipalities underwent a rise in the mortality of children under the age of one. Second, the authors do the same for cause-specific infant mortality from typhus, typhoid fever, diarrhoea, dysentery, acute diseases of the digestive system and cholera. Based on the outcomes, there was no homogenous rise in infant mortality in all Roman Catholic municipalities. Furthermore, there is no indication that infant mortality due to digestive diseases increased uniformly in all Roman Catholic communities between 1875 and 1899. Either some communities were able to counteract the negative effects of a shift towards weaning or changes in breastfeeding patterns were not a specific Roman Catholic phenomenon at all.     

Medicine,statistics, and the encounter of abortion and “depopulation” in France (1870–1920)

The anxiety about the population decline in France acquired at the end of the XIXth Century a great strength. Among the scholarship specialities involved in its analysis, the population studies developed by authors like Adolphe and Jacques Bertillon played a key role, but were limited by their lack of concern and/or precise data concerning the intimate behaviours. The growing implication of doctors in the issue of “depopulation”, and the concrete professional practices of some of them, led to an emerging focus on abortion. The obstetricians, who undertook in the “belle époque” personal statistics of abortions, permitted (despite the numerous limits of their works) to provide original data. They gave militants and politicians occasion to shape “mass abortion” as the principal “cause of denatality”. This paper examines the scientific, social and ideological genesis of this process, and enlightens the historical interest of these peculiar knowledges.